http://www.familysecuritymatters.org/publications/detail/a-clash-of-supremacies-over-obamacare
Before Chief Justice of the Supreme Court, John Roberts, wrote the majority opinion upholding the alleged constitutionality of the Affordable Care Act (on one hand, denying its constitutionality under the Commerce Clause, but, on the other, sanctioning the individual mandate as a tax Congress has the power to impose), otherwise known as Obamacare (ADA), several states had announced that they would refuse to implement the law or conform to its specific provisions. At last count there were four, from the original twenty-seven, led by Florida.
Such opposition may move Congress to repeal Obamacare in part or in its entirety, instead of fighting the states (provided Republicans retain control the House and win control of the Senate); it may cause it to “replace” Obamacare with something less onerous (but no less unconstitutional); or it may cause another Constitutional crisis in which the states invoke the Tenth Amendment and are answered by the federal government overriding the states’ supposed right to resort to that strategy.
The last major defiance of federal policy by the states on the basis of states’ rights precipitated the Civil War.
The questions are: Can the states successfully resist the federal government on this issue? Can they unite in their opposition? Would the federal government back off, or offer a compromise, such as was reached during the Nullification Crisis of the 1830’s? Can the federal government override their opposition? Will the federal government threaten to punish states that refuse to comply with Obamacare, e.g., by withholding federal highway funds or Medicaid funds, or by devising another strategy to induce compliance? And if the states champion noncompliance with any facet of Obamacare, on what moral grounds?
Three features of the Constitution will come into play in this pending conflict:
The Tenth Amendment: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States, or to the people.
The Supremacy Clause of Article VI, Section 2, which states that the Constitution, and the Laws of the United States…shall be the supreme Law of the Land. This clause applies solely to the enumerated powers granted to Congress in Article I, Section 8, and to no other laws, assumed or imagined. This clause by inference also exempts the federal government from complying with state laws.
The Necessary and Proper Clauseof Article I, Section 8, which reads: To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof. This is the last of eighteen enumerated powers.
The Tenth Amendment, or the “states’ rights or sovereignty” Amendment, has a dubious history. It has been invoked by states in the past to impose or legitimate the denial of individual rights to blacks or to sanction the statist mischief or criminal behavior of a state legislature. The Amendment has never been invoked to protect individual rights.
Furthermore, in the 20th century, the argument from state sovereignty or from “reserved rights” lost credibility when states began to accept federal money for various highway, welfare, and other federal programs. By accepting those funds, the states lost a great portion of their vaunted sovereignty. They could claim arm-twisting by the federal government, but once they submitted, the wind went out of their claims to state sovereignty. They became addicted to and dependent on the subsidies in terms of their own budgets and expenditures. They complemented the growth of federal power with the growth of their own powers. It may be too late to reassert their sovereignty now. States maintain that they can pick and choose which powers they reserve (in the name of “the people”). This they might do, but the federal government has in many instances adopted a policy of “benign neglect” in respect to allowing states to assert their own prerogatives.
The Supremacy Clause has been virtually ignored by Congress, because Congress has passed thousands of laws not enumerated in the Constitution (“implied” powers), but whose enactment has been rationalized by Article I, Section 8, whose first clause reads, The Congress shall have Power To lay and collect Taxes, Duties, imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States.